Today, the UK Supreme Court gave judgment (full text) in the joined appeals of Al Waheed v Ministry of Defence and Serdar Mohammed v Ministry of Defence (in which I represented the First Interveners, with Paul Luckhurst). It is the latest in the post-Al Skeini line of cases in which English courts, and the European Court of Human Rights (ECtHR) have grappled with the application of the European Convention on Human Rights (ECHR) to extra-territorial military operations carried out pursuant to UN Security Council Resolutions (UNSCRs). In this post I summarise the four key issues of principle decided by the Court.

Both appeals originated as actions for damages against the UK Government alleging unlawful detention contrary to Article 5 of the ECHR (A5). Al Waheed was detained for several weeks in Iraq in 2007 and Mohammed was detained for over three months in Afghanistan in 2010. A5(1) prohibits deprivation of liberty unless it is based on one of the six permissible grounds identified therein and is “in accordance with a procedure prescribed by law”. A5(4) entitles a person deprived of his liberty to take proceedings by which the lawfulness of his detention may be speedily decided by a court. As a matter of English law it is unlawful for a public authority to act incompatibly with certain ECHR rights, including A5.

The four key issues of principle decided by a majority of the Court are as follows:

On UN Security Council Resolution interpretation:

UNSCRs should be construed on the basis that those acting under their authority will respect human rights insofar as that is consistent with the proper performance of their functions. That qualification is important in this case because of the conflict context and given the international composition of the peacekeeping presence. The latter point requires UNSCRs to have a uniform, global, meaning and not one that depends on a national or regional code of human rights protection. That is especially important since A5 is unique in containing an exhaustive list of permitted grounds of detention (cf. Article 9, ICCPR).

UK armed forces had legal power to detain the claimants pursuant to the relevant UNSCRs. The Iraq UNSCR (1546) identified, in the annexed letter of Colin Powell, the power to detain (internment) where necessary for imperative reasons of security. The Afghanistan UNSCRs (1386, 1510, 1890) were interpreted as including a similar power to detain, since the mandate of ISAF (the International Security Assistance Force) was to take “all necessary measures” to assist the Afghan authorities “in the maintenance of security”; it was apparent from recitals to UNSCR 1890 that the Security Council was particularly concerned about violence and terrorist activities and the mission for troop-contributing nations involved not just operations ancillary to ordinary law enforcement but also armed combat against an organised insurrection.

Both the Iraq and Afghanistan UNSCRs were adopted in the exercise of the SC’s responsibilities under Chapter VII of the UN Charter and therefore provided binding authority, in international law, for detention of members of the opposing armed forces whenever necessary for imperative reasons of security.

Unlike Lord Reed’s dissenting judgment, the majority judgments do not give detailed consideration to the ECtHR case-law on the construction of UNSCRs – Al-Jedda v UK, Nada v Switzerland, Al-Dulimi v Switzerland – and the resulting proposition that UNSCRs must contain clear and specific language if the SC intends states to take measures conflicting with their obligations under international human rights law. The majority focus, instead, on the fact that there is nothing in general international human rights law precluding detention where necessary on imperative grounds of security (pointing out that A5(1) is unique in containing an exhaustive list of permissible grounds for deprivation of liberty) and on the ECtHR’s latest judgment on the relationship between the ECHR and international law: Hassan v UK.

On the relationship between A5 and the power to detain in the UNSCRs:

A5(1) should be read so as to “accommodate”, as a permissible ground, detention pursuant to the power to detain in the UNSCRs, even if that detention did not fall within one of the six permissible grounds identified by A5(1).

This conclusion follows from Hassan v UK, in which the Grand Chamber of the ECtHR “accommodated”, within A5, as a permissible ground of detention, detention pursuant to the Geneva Conventions in an international armed conflict.

Hassan is not distinguishable by reference to the facts that it concerned an international armed conflict and the power to detain was derived from the Geneva Conventions. It applies to the present appeals because, like them, it involved the question whether A5 should be interpreted so as to accommodate an international law power to detain.

The majority judgments do not dwell on how their “accommodation” is to be reconciled with the text of A5 but it seems that A5(1) is no longer to be regarded as containing (outside peacetime) an exhaustive list of 6 grounds. Lord Sumption rejects the notion that Hassan adds a notional seventh ground of permitted detention to the six grounds listed in A5(1) (namely military detention in the course of armed conflict) but then goes on to say that the effect of Hassan is to recognise that the six grounds in A5(1) “cannot necessarily be regarded as exhaustive when the Convention is being applied to such a conflict, because their exhaustive character reflects peacetime conditions” (para 68(2)). This appears to be another way of saying that there is a notional seventh ground of permitted detention in armed conflict. Similarly, Lord Mance appears to treat A5(1) as containing a non-exhaustive list and an additional, seventh ground: “the more detailed express terms of [A5(1)] may be seen as illustrations of, rather than limitations on, the exercise of the power to detain. This in turn allows scope for or accommodates the operation of wider powers to detain in situations of armed conflict, where provided by general international law or by a specific SCR under Chapter VII.” (para 164).

On Article 5(4) in the context of military detention:

Hassan is also authority for the proposition that A5(4) may be adapted, where necessary in the special circumstances of armed conflict, provided that minimum standards of protection exist to ensure detention is not imposed arbitrarily.

The Court went on to apply this adapted form of A5(4) to Mohammed’s case and to consider the appropriateness of the internal review mechanism in the UK detention policy.

On whether there is a power to detain as a matter of customary (international humanitarian) law in a non-international armed conflict:

Although this issue occupied a considerable part of the oral hearing, the majority stated that it did not need to be decided in light of their conclusion that there was a power to detain under the UNSCRs and that power could be accommodated within A5.

However, Lord Sumption (with whom the other majority Justices agreed on this point) said that he was “inclined to agree” (para 14) with Lord Reed’s (dissenting) judgment in which Lord Reed concludes that, at present, there is no power to detain members of the opposing armed forces as a matter of customary international law.

In his dissenting judgment Lord Reed said there was much to be said for the view that international humanitarian law should recognise a right to intern in a non-international armed conflict with an extra-territorial element but went on to conclude that (a) the Geneva Conventions and their Protocols did not impliedly authorise detention in non-international armed conflicts and (b) there was no such power as a matter of customary international law in light of the present state of opinio juris and state practice.

Even though Lord Reed’s analysis and conclusions did not affect the outcome in these appeals (given the majority’s findings that there is power to detain in the UNSCRs) they are a valuable and significant contribution in this – developing – area of international law. As Lord Mance observed, “domestic courts have a certain competence and role in identifying, developing and expressing principles of customary internationallaw” (para 148).